Christopher Packham CBE v The Secretary of State for Transport

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Coulson,Mr Justice Holgate
Judgment Date06 April 2020
Neutral Citation[2020] EWHC 829 (Admin)
Docket NumberCase No: CO/1242/2020
Date06 April 2020

[2020] EWHC 829 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Coulson

and

Mr Justice Holgate

Case No: CO/1242/2020

Between:
Christopher Packham CBE
Claimant
and
The Secretary of State for Transport
First Defendant
The Prime Minister
Second Defendant
HS2 Ltd
Interested Party

David Wolfe QC and Merrow Golden (instructed by Leigh Day) for the Claimant

Timothy Mould QC and Jacqueline Lean (instructed by The Government Legal Dept) for the Defendants and Interested Party

Hearing date: Friday 3rd April 2020

Approved Judgment

Mr Justice Holgate

Lord Justice Coulson and

1

INTRODUCTION

1

This is the Judgment of the Court, to which we have both contributed.

2

The claimant is a well-known television personality and environmental campaigner. By judicial review proceedings commenced on 27 March 2020, he seeks to challenge the decision made by the First Defendant to continue with the HS2 rail project. As part of that application, the Claimant seeks an interim injunction to prevent the carrying out of clearance works in six different woodlands, most but not all of which are in Buckinghamshire, which would otherwise be due to occur over the next few days. Although the hearing on 3 April 2020 was listed to consider only the injunction application, it became apparent that it was not practicable to distinguish between the first part of the test for an interim injunction (namely, whether the claimant has a realistic prospect of success), and the test for whether permission to bring judicial review proceedings should be granted. Accordingly, the court considered both the merits of the judicial review challenge and the claim for an injunction. The parties agreed with this approach.

3

Due to the extreme urgency of the application, at the end of the hearing, after a short break in which the court considered its conclusions, the parties were told that permission to bring judicial review proceedings would be refused because the Claimant's claim did not have a realistic prospect of success. In addition, the court said that, even if the Claimant did have a realistic prospect of success, the balance of convenience (the second part of the test for an interim injunction) favoured the continuation of the clearance works. The court said that it would endeavour to give written reasons for those conclusions by the end of Monday 6 th April.

4

These are those reasons. They are set out in the following way. In Section 2, we set out the factual background. In Section 3, we address the question as to whether the application for judicial review was made promptly. In Section 4 we deal with what we consider is the limited basis on which the relevant decision could be impugned by this court. In Sections 5–8 inclusive, we deal with each of the four Grounds for the application and explain why we have concluded that they each have no realistic prospect of success. In Section 9, we explain why, even if the application had a realistic prospect of success, the balance of probabilities favoured not granting the injunction sought. There is a brief summary of our conclusions in Section 10.

5

We should emphasise that this court is only concerned with whether the decision being challenged is unlawful in some way. We are of course aware that members of the public have strongly held views for and against the HS2 project, but it is important to stress that it is not part of the court's role to deal with its pros and cons.

6

In view of the coronavirus pandemic, the hearing took place remotely, observed by many members of the Press who had asked to join via Skype. That it can be accounted a success was entirely due to the clarity of leading counsel's oral submissions, and the hard work and organisational skills of our clerks. The court expresses its gratitude to all those involved.

2

THE FACTUAL BACKGROUND

2.1

The Legislative Context

7

HS2 is a national high-speed railway network which, on its completion, will connect London, Birmingham, Manchester and Leeds. It has proved controversial twice over: once during the detailed consideration of the Bill, which eventually became law in 2017 (“the 2017 Act”) 1, and again in the autumn and winter of 2019/2020, when the First Defendant reviewed the HS2 project and decided, on 11 February 2020, to continue with the project.

8

The HS2 project is being carried out on a phased basis, under the 2017 Act, which gives the necessary powers for the construction and operation of phase 1. The Interested Party was created by the First Defendant in 2009 and given responsibility for development and delivery of HS2 on behalf of the Government. It is the appointed ‘nominated undertaker’ for the construction of Phase 1 of HS2, from London to the West Midlands. It is only Phase 1 which has so far been permitted to proceed.

9

Both the strategic case for HS2 and the proposed route for Phase 1 were the subject of a national public consultation carried out by the First Defendant between February and July 2011. Amongst the principal issues raised for public consideration were (a) the need for a major increase in rail capacity and for a major improvement in connectivity between cities; and (b) whether there were alternative options. The Court of Appeal subsequently held that the 2011 public consultation on the proposed high speed rail strategy, proposed Phase 1 route and consideration of alternatives had been lawfully carried out: see R (HS2 Action Alliance Ltd) v Secretary of State [2013] EWCA Civ 920.

10

In January 2012, the Government published its adopted high-speed rail strategy and the route for Phase 1. A Bill seeking powers for the construction and operation of Phase 1 was introduced into Parliament in November 2013. In early 2014, the Supreme Court dismissed appeals against the decision of the Court of Appeal, holding (inter alia) that the objectives of EU law in respect of environmental impact assessment of Phase 1 were capable of being fulfilled through the Parliamentary process: see R (Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 WLR 324.

11

In February 2017, Phase 1 was authorized by the enactment of the 2017 Act. Relevant sections include:

a) Section 1, which gives power to the nominated undertaker to construct and maintain the works specified in the first schedule to the Act – the “scheduled works” – being works for the construction of Phase 1 and works consequential on, or incidental to, such works.

b) Section 15 and paragraph 1(2) of schedule 16, which give power to the nominated undertaker to enter onto and take possession of land for Phase 1 purposes. “Phase 1 purposes” include “anything being done or required

for the purposes of or in connection with the works authorized by this Act”.

c) Section 20, which granted deemed planning permission under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorized by the Act. In the case of development authorized by the Act which consists of the carrying out of an element of work which is not scheduled works, that development falls within the scope of the deemed planning permission if it is covered by “an environmental statement in connection with the Bill”: section 20(2)(c) of the Act.

d) The deposited statements which constituted the environmental statement in connection with the Bill are identified in sections 68(4) and (5) of the Act. Environmental information about the works for Phase 1 purposes which are the subject matter of the present application for an injunction is contained in those deposited statements.

e) The “Act limits” for Phase 1 purposes include land or any other thing if it is within the limits of land to be acquired and used: section 68(2)(b) of the Act. The limits of land to be acquired and used are shown on the deposited plans (sections 61 and 68(1) of the Act). The works for Phase 1 purposes which are the subject matter of the present application for an injunction are to be carried out on such land.

f) The “nominated undertaker” is a person appointed by the Secretary of State for such purposes of such provisions of the Act as may be specified in the order of appointment: section 45(1) of the Act. The works for Phase 1 purposes that are the subject matter of the present application for an injunction fall within the purposes specified in the order by which the First Defendant has appointed the Interested Party as nominated undertaker.

12

Section 68(5)(a) of the Act records that, in November 2013, the Promoter of the Bill (the Department of Transport) deposited an environmental statement (“ES”) in pursuance of Standing Order 27A of the House of Commons relating to private business (environmental assessment). Subsequently during Parliamentary scrutiny of the Bill, supplementary environmental statements (“SES”) were published, as is recorded in section 68(5)(b) of the Act. Both the ES and SES were subject to public consultation in accordance with the requirements of Standing Order 224A, and a summary of the results of that public consultation was compiled by an independent consultant appointed for that purpose and reported to MPs in advance of Second Reading and (in the case of SES) Third Reading of the Bill in the House of Commons.

13

Both the ES and the SES contained detailed accounts of the effects of works to be carried out for Phase 1 purposes on wildlife, including European Protected Species, their habitats and on designated ancient woodlands and other areas of woodland affected by the works now authorized by the Act. Both the ES...

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